Attorney Fee Award in Uniform Parentage Act Cases
Family Code Sections 7640 and 7605 are the pertinent statues governing an attorney fee award in cases falling under the Uniform Parentage Act.
Section 7640 provides, "The court may order reasonable fees of counsel, experts, . . . and other costs of the action . . . , to be paid by the parties, . . . in proportions and at times determined by the court."
Section 7605, subdivision (a) provides:
"In any proceeding subsequent to entry of a judgment under the Uniform Parentage Act, Family Code section 7600 et seq., to establish physical or legal custody of a child or a visitation order, the court shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, . . . to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." Section 7605, subdivision (b) provides, in relevant part: "When a request for attorney's fees and costs is made under this section, the court shall make findings on whether an award of attorney's fees and costs is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs."
In Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633 (Kevin Q.), the Court explained "section 7640 grants a court the discretion to award fees. Section 7605, subdivision (a), in contrast, requires the court to ensure 'each party has access to legal representation . . . by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees. . . .In sum, the court must first assess whether a fee award is necessary to ensure access to legal representation and then, based on that assessment, award that amount which is reasonably necessary to ensure 'each party has access to legal representation.'" (Id. at p. 642.)
Kevin Q. further explained section 7605 "requires a comparative analysis of the parties' circumstances and/or needs and serves the common purpose (shared by all the Fam. Code statutes that authorize attorney fee awards) of ensuring, 'to the extent possible, that the litigating parties are on an equal footing in their ability to present their cases. . . .' Thus, sections 7605 and 2030 focus on the parties' 'respective incomes and needs' and 'respective abilities to pay.'" (Kevin Q., supra, 195 Cal.App.4th at p. 643.)
Kevin Q. noted the trial court may look to section 2032 in determining whether an award is "'just and reasonable under the relative circumstances of the respective parties.'" (Ibid.) Section 2032 in turn directs the court to the factors listed in section 4320.
Section 2032 provides that in determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in section 4320. ( 2032, subd. (b) the fact party requesting fees and costs has resources from which to pay is not itself a bar to an order that the other party pay part or all of the fees and costs requested but only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.)
Section 4320 directs the court to consider, among other things, the marketable skills of the supported party, the ability of the supporting party to pay taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living, the obligations and assets, including the separate property, of each party, the ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party, the age and health of the parties, the balance of the hardships to each party, and any other factors the court determines are just and equitable.
In Kevin Q., we concluded the trial court did not abuse its discretion when it declined to award the mother any of the attorney fees she sought from her former boyfriend in his paternity action. We noted "section 7605, subdivision (a) authorizes awards only for 'reasonably necessary' fees. The mother contends the court did not find the fees charged by her attorney to be unreasonable. But in the absence of a statement of decision, we must infer a finding in favor of the judgment on this controverted issue. This is particularly appropriate in light of (1) the court's statement that the law does not give an attorney carte blanche 'to litigate the case without limitation' and (2) the disparity between the fees charged by the boyfriend's counsel and those charged by mother's counsel. Given that we must infer findings in favor of the judgment, we interpret the court's observation that the mother's counsel 'forged ahead, incurring attorney's fees far in excess of either party's reasonable ability to pay,' as referring to the unreasonableness of the fees charged, not (as the mother interprets the statement) to the mother's choice to defend herself against the boyfriend's paternity claim. (The court, in denying the mother's request for fee sanctions, found that neither party acted in bad faith or unreasonably in prosecuting or defending the matter. Contrary to the mother's view, this latter finding was not an affirmation that the fees charged by her attorney were reasonable.)" (Kevin Q., supra, 195 Cal.App.4th at p. 645.)